AG clears Reams in Portsmouth police wiretapping probe

Elizabeth Dinan

Friday

Jul 31, 2009 at 2:00 AMAug 4, 2009 at 5:14 PM

PORTSMOUTH — Acting New Hampshire Attorney General Orville Fitch announced Friday that no crime was committed when the conversations of civilian employees in the police department’s records office were recorded without their knowledge, while upholding County Attorneys Jim Reams’ earlier review of the matter.

PORTSMOUTH — Acting New Hampshire Attorney General Orville Fitch announced Friday that no crime was committed when the conversations of civilian employees in the police department’s records office were recorded without their knowledge, while upholding County Attorneys Jim Reams’ earlier review of the matter.

In a notice to the media, Fitch said his office reviewed Reams’ three-page report, which advised against pursing criminal charges and called it “a reasonable exercise of prosecutorial discretion.” He said the AG also reviewed a 19-page report outlining an internal Police Department investigation that has not been made available to the public.

“As the chief law enforcement officer for the State, the Attorney General has authority to review, for an abuse of prosecutorial discretion, the decision of the county attorney not to file criminal charges,” wrote Fitch. “However, the county attorney, as an elected official, is primarily responsible to his or her constituents for the prosecution of crimes in his or her jurisdiction. Absent some overriding public interest, so long as the county attorney acts in a good faith manner, the Attorney General will not interfere with the prosecutorial decisions of the county attorney’s office.”

Fitch also echoed Reams’ earlier conclusion that to convict someone for a violation of state wiretapping law, prosecutors “must prove beyond a reasonable doubt that the person whose conversation was intercepted ‘exhibit[ed] an expectation that such communication is not subject to interception under circumstances justifying such expectation.’”

“The employees knew or reasonably should have known that their conversations with the public were subject to interception,” Fitch concluded, while noting that the audio recording system was installed in plain view and following at least one police department staff meeting. “The fact that the employees were unaware of the precise manner of interception or who was monitoring the conversations does not make the recording illegal.”

Fitch called the lack of a sign inside the records office to notify the employees that they were being recorded “an oversight.” However, he said, “it is reasonable to question whether the state would have been able to prove that the employees had a reasonable belief that their communications would not be intercepted.”

“Moreover, there was a microphone plainly visible in the records office.”

A similar recording device was installed outside the records office in the police department lobby where the public does business, but a sign on the public side of the office advertises that conversations are being recorded.

Fitch said a person has not broken wiretapping law “if he has a ‘good faith’ belief that [his] conduct was lawful” and Reams “reasonably concluded that the state could not prove beyond a reasonable doubt that anyone acted knowing that their actions were illegal.” He also concluded that “the system was installed for legitimate administrative reasons: to ensure the quality of service provided by city employees and to protect employees from wrongful complaints.”

“There is no evidence that the system was used for personal reasons or used for reasons other than these legitimate administrative concerns,”

Fitch announced, “Accordingly, no further action is appropriate by the Attorney General’s Office.”

By all accounts, the audio recording system “went live” on Nov. 19, 2008 and digital recordings of the employees’ conversations were fed to a supervisor’s computer, allowing the supervisor to listen to everything said inside the records office from a different floor in police headquarters. The employee complaint followed, prompting an internal investigation, then the review by Reams’ office which ruled no law was broken.

Police Chief Michael Magnant said the recording device was removed on May 14, at least two months after the employee complaint. Police Department policy allowed for the audio monitoring at the time, but that policy has since been changed, he said.

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